BC Supreme Court rules that Indian status can now be traced through mother
The June 16 story has now been followed up with the June 19 story that indicates that Ottawa will likely appeal the BC court ruling (see the two stories below) ...
Indian status can be traced through mother, court rules
BILL CURRY - June 16, 2007
VANCOUVER -- The B.C. Supreme Court has wiped out one of the most contentious aspects of the federal Indian Act, striking down part of Ottawa's definition of a status Indian and opening the door to hundreds of thousands of new applications for native services.
The court rejected part of the existing legal definition on the grounds that it discriminates against Canadians who trace their aboriginal roots through their female relatives rather than their father or grandfather.
The ruling alters the federal law that has long created two classes of aboriginals in Canada: the 767,000 who fit the definition of status Indian and the several hundred thousand more who don't.
The 2001 census found 976,000 Canadians who self-identified as aboriginal and more than 1.3 million who said they had aboriginal ancestry.
Many aboriginals who failed in their requests for status will now have a much better chance of success, said Beverley Jacobs, the president of the Native Women's Association of Canada.
"This opens the floodgates," she said. "I don't think we could have asked for a better judgment."
Aboriginals with status qualify for prescription drug coverage and can apply for postsecondary assistance.
Status Indians are also exempt from paying taxes on income earned on reserves. But Sharon McIvor, who successfully challenged the law with her son Jacob Grismer, argued in court that status also carries a huge social value in native communities that can mean the difference between acceptance or rejection.
In an interview yesterday, Ms. McIvor, a professor and lawyer who lives on the Lower Nicola Indian Band, where she traces her native lineage to her matrilineal grandmother, predicted the decision will have a major impact.
"Conservatively, we're looking at probably 200,000 people [who could now qualify for status that did not before the ruling]," she said. Before contact with Europeans, many native tribes operated under matrilineal power structures in which women were the community leaders. After Confederation, male-dominated ruleswere imposed on those communities through the Indian Act that meant only men could pass along native status.
The federal government claimed to have addressed the long-standing discrimination in 1985 though Bill C-31, which added about 175,000 more people to the Indian registry. But the B.C. Supreme Court said that bill did not go far enough and created problems for future generations.
"I have concluded that the registration provisions embodied in [Section 6] of the 1985 Indian Act continue the very discrimination that the amendments were intended to eliminate," wrote Madam Justice Carol Ross. "The provisions prefer male Indians and their descendants to female Indians and their descendants."
Federal government lawyers urged the judge to suspend her decision for 24 months to give Parliament time to consult aboriginal groups and draft new legislation. Judge Ross rejected that argument, meaning that Section 6 of the Indian Act - which is the entire section outlining how someone can qualify as a status Indian - "is of no force and effect insofar, and only insofar, as it authorized the differential treatment of Indian men and Indian women." The federal government is still reviewing the ruling and has not decided whether to appeal.
The Assembly of First Nations, which represents status Indians who belong to reserves, has been increasingly concerned about the rules governing status. The National Chief of the AFN, Phil Fontaine, has warned discrimination against descendants of native women is just one of many problems caused by Bill C-31.
With estimates that more than half of all natives now marry non-natives, the current law's "second-generation cut-off" means an increasing number of natives are unable to pass on their status to their children.
"The McIvor decision puts pressure on the Government of Canada for policy and legislative reform. The Government of Canada will no doubt appeal this decision," Mr. Fontaine said in a statement yesterday. The national chief of the main off-reserve and non-status group, the Congress of Aboriginal Peoples, said the ruling supports his organization's long-standing argument that thousands of natives are being unfairly denied access to services.
"I don't think that the majority of Canadians are aware that there are over 400,000 non-status Indians in this country who unfortunately can't access any programs and services," said Patrick Brazeau, who urged Ottawa not to appeal. "More and more people are becoming non-status Indians, so it's a question of liability and therefore a question of dollar signs."
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Appeal of native ruling likely, Ottawa says
BILL CURRY - June 19, 2007
OTTAWA — Indian Affairs Minister Jim Prentice said his government will likely appeal a major court ruling that would expand the number of aboriginals qualifying for services by hundreds of thousands.
In a statement released by his office yesterday, the minister said he would need a ruling from a higher court than the B.C. Supreme Court, which released the judgment last week.
"I expect that the decision will be appealed, although that decision has not yet been made," Mr. Prentice said. "The [B.C. Supreme Court] decision is a significant one and it is reasonable to expect that the final decision will have to be made at a higher appellate level."
The appeal would come in spite of recently released internal documents showing Ottawa has been fighting the issue in court fully expecting to lose.
The B.C. Supreme Court decision could transform the way Ottawa deals with aboriginals. It struck down part of a 1985 change to the Indian Act called C-31 on the grounds that it discriminates against natives who trace their roots through their female forebears. The court also raised concern about what is known as the "second-generation cutoff" in which many grandchildren of people who were status Indians in 1985 are now being denied status due to marriages with non-natives.
For the most part, Ottawa has limited its legal obligation to "status Indians," a term it created that currently applies to about 700,000 people. That leaves out hundreds of thousands of Canadians with aboriginal heritage.
Indian Affairs documents obtained by NDP MP Jean Crowder show the department was bracing for "disruption" and rising costs after an expected defeat.
Ms. Crowder said the documents show it is time for Ottawa to stop the legal battles and craft a way forward with aboriginal groups, several of whom have also urged Ottawa not to appeal. "This government has been talking about how it's a champion of human rights, so if they appeal that decision, I wonder how they are going to justify that," she said, in reference to a bill introduced by Mr. Prentice to allow the Human Rights Act to apply on reserves.
Liberal Indian affairs critic Anita Neville agreed. "I'm disappointed he's appealing," she said. "More taxpayers' dollars should not go into fighting aboriginal women after the years of discrimination they've endured."